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Tuesday, April 12, 2011

There is an additional ground for reversal raised by Spector on appeal that has not yet been discussed: Prosecutorial misconduct based on prosecutor’s accusing Doron Weinberg of going out and hiring expert witnesses willing to lie for large sums of cash.

These excerpts are from Spector’s reply brief on that subject:

The prosecution’s attack on defense counsel for paying for false testimony was notsimply a criticism of “defense tactics and evidence,” as respondent argues. (RB 116.)The rule is one of boundaries: evidence-based attacks on witness credibility are permitted, but not baseless accusations that defense counsel is dishonest in procuring witnesses in order to hide the truth from the jury. “Argument may not denigrate the integrity of opposing counsel, but harsh and colorful attacks on the credibility of opposing witnesses are permissible.” (People v. Arias (1996) 13 Cal.4th 92, 162; italics in original; accord People v. Sandoval (1992) 4 Cal. 4th 155, 183-185.) From the prosecutor’s opening final argument, the attack was initiated on defense counsel such that the latter had to address the issue in his own argument: “The prosecution, apparently, thinks that you find me untrustworthy. Apparently, that was the meaning of Ms. Do’s argument yesterday.” (48 RT 9344.)

Respondent argues the aspersions cast on defense counsel for his alleged “machinations of the truth” and similar comments were proper. The term “machination” is defined as “a scheming or crafty action or artful design intended to accomplish some usually evil end.” In context, the word conveyed that appellant’s counsel 24 was a schemer to achieve an evil end, i.e., the suppression of the truth. In fact, they explicitly argued he hired the experts in order to hide the truth from the jury.

Prosecutors may zealously argue their cases and strike hard blows in the process,but not foul ones. (Berger v. United States (1935) 295 U.S. 78, 88.) Respondent goesthrough each of the statements at issue to explain that they in some way responded to defense positions. (See RB 117 et seq.) But it is one thing to point to the evidence toargue the defense position is unsupported or contradictory, and another to label theprocess as counsel’s dishonest scheme to suppress the truth. It is this context that definesthe prosecution argument that counsel paid his experts to say whatever he wanted them tosay no matter how ridiculous in order to keep the truth from the jury.

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Respondent defends the prosecution’s argument regarding defense counsel going“through the machinations of the truth to avoid it, to change it, to move it from here tohere. I mean, this is almost like an inside joke with us because we’ve seen this moved tohere.” (47 RT 9276.) Respondent’s defense of this “inside joke” between the twoprosecutors is that it was not an attempt to smuggle into the case an inference that theprosecutors had an “inside joke;” i.e., personal beliefs about defense counsel’smachinations and not an argument based on factual information known only to theprosecutor. (RB 121.) The rejoinder fails. The comment and the others like it were not mere “arguments that defense counsel called witnesses that gave implausible testimony.”(RB 123.) They were attacks on counsel’s integrity that he put on 25 phony evidence to“hide the truth” from the jury.